Most estates go through the probate process in a smooth manner. But if a family member feels that he or she has been wronged, disputes can occur. From voided wills to looted estates, from accounting disputes to disagreements over the sale of assets, an estate litigation attorney can represent either the estate itself or beneficiaries in the event of a contested will, contested trust and/or allegations of wrongdoing. Estate litigation lawyers and law firms can also work with families if guardianship is being contested.
When a person dies, he or she often leaves behind property and/or debts. The sum total of all property-real and person, tangible and intangible-that the decedent owned at the time of his or her death is known as the decedent’s estate. If a creditor claims that the decedent owed money to the creditor, or if one of the beneficiaries or heirs of the estate does not believe the will entered is a valid will, a claim is filed or a will contest opened. Any claim or contest to the estate is considered estate litigation.
Unfortunately, estate litigation is an inevitable part of many estates. When a decedent dies, the estate must usually pass through a formal legal process known as probate. The executor of the estate under the terms of a will, or another family member or close friend in the absence of the will, must petition the court to open a probate estate. The decedent’s assets will be accounted for and valued, and anyone claiming to have a claim against the estate is given the opportunity to file that claim with court.
A claim against an estate often turns into estate litigation if the executor or personal representative does not agree with the claim. When the executor or personal representative approves a claim, it is paid out of the assets of the estate. If the claim is denied, then the creditor must petition the court for payment, which results in estate litigation.
The other big area of estate litigation is in the area of will contests. When a decedent dies and a will is admitted to probate, a potential beneficiary or heir may decide to challenge the will. The laws regarding the right to contest a will and the reasons for challenging a will vary by jurisdiction; however, in most cases, if a person believes the will is not valid, then estate litigation is an option in the form of a will contest.
Most estate litigation is ordered by the court to mediation in an attempt to settle the issue. Mediation is a process where a certified mediator listens to both sides and attempts to facilitate an agreement between the parties. Although mediation is not usually required, courts certainly encourage parties to avail themselves of the option. If mediation is unsuccessful, then the court will schedule a hearing or trial on the matter and render a binding decision.
Contesting a will or a trust can be a very specialized area of law and that is why it is important to have a law firm that has experience in handling these matters on your side.
Our estate litigation attorneys are not only skilled at handling cases involving estate and trust disputes, they draw on a thorough knowledge base of the specific procedures surrounding these issues. We can efficiently take each case through to completion realizing that full blown litigation often can be avoided if we work diligently to come to resolution.
The estate litigation attorneys represent beneficiaries, trustees and personal representatives in various jurisdictions dealing with estate litigation and probate litigation matters.
A will contest challenges the admission of a will to probate or seeks to revoke the probate of a will that is already pending before the probate court.
A similar type of estate litigation can take place contesting the terms of a trust. The most common causes of action in both will contests and estate litigation follow.
1. Lack of Capacity
Under the law, a testator is required to have mental competency to make a last will and testament or trust and to understand the nature of his or her estate assets and the people to whom the estate assets are going to be distributed. A will or trust can be declared void if lack of capacity can be proven. Usually, incompetence is established through a prior medical diagnosis of dementia, senility, Alzheimer’s or psychosis.
2. Undue Influence
When the testator is compelled or coerced to execute a will or trust as a result of improper pressure exerted on him or her, by a relative, friend, trusted advisor, or health care worker, a cause of action arises. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the descendants or close relatives of the decedent. In other cases, one child of the decedent will coerce the decedent to write the other children out of the will or trust.
3. Lack of Formalities
Proper execution of a last will and testament or trust requires that the will or trust be signed by the testator and witnessed and signed by two unrelated parties. A last will and testament can be contested on the basis that it was not properly drafted, signed, or witnessed in accordance with the law.
4. Breach of Fiduciary Duty
The personal representative of an estate or the trustee of a trust owes the beneficiaries of the estate or trust certain fiduciary duties of honesty, prudence and loyalty. When those duties are violated by a trustee or personal representative, a cause of action arises.
5. Elective Share
Some states provide an elective share to surviving spouses, which provides the surviving spouse with a portion of the deceased spouse’s estate according to a statutory formula. Deadlines may be associated to make the elective share.
6. Forged Documents
Documents can be forged to create unintentional outcomes with the intent to deceive. When documents appear altered or falsified, a cause of action arises.